Americans with Disabilities Act

Americans with Disabilities Act Enforcement Clues in New DOJ Settlement Agreement

In April 2021, in response to a complaint of Americans with Disabilities Act (ADA) discrimination, a Virginia skilled nursing provider accused of denying a resident admission because she was deaf settled a federal disability lawsuit brought by the U.S. Department of Justice (DOJ) for $90,000. The ADA prohibits places of public accommodation, such as health care providers, nursing home, and long term care facilities from excluding from their services individuals with disabilities because they require a sign language interpreter for effective communication between them and their health care provider.

According to McKnight’s Long-Term Care News, the allegations were brought against the Brookside Rehabilitation and Nursing Center (BRNC), a 130-bed nursing home in Warrenton, Virginia and its managers Abraham A. Gutnicki and Judy Kushner.

“Gutnicki is part owner of Warrenton Operations, LLC, which manages the facility, while Kushner is an executive there, according to federal data. A request for comment left by McKnight’s Long-Term Care News with the facility was not returned by production deadline. The case stems from claims that Brookside denied admission to an individual who is deaf because she would have needed sign language interpreting services, which is in violation of the Americans with Disabilities Act.”

Denying Admission is Disability Discrimination Says DOJ

In addition, during the investigation of the discrimination allegations, DOJ found that BRNC maintains admission criteria for its nursing facility that screen out or tend to screen out individuals who are deaf.

DOJ specifically determined that:

“BRNC refused to offer to furnish a qualified sign language interpreter or otherwise provide an effective method of communicating with the [complainant].

When {BRNC] staff learned that the [complainant] would need sign language services for effective communication, [BRNC] refused to accept her as a Patient.”

To resolve DOJ’s complaint and discrimination allegation, BRNC agreed to pay $40,000 to the resident who filed the complaint and a $50,000 civil penalty payable to the United States of America, according to the Eastern District of Virginia’s U.S. Attorney’s Office.

BRNC also must adopt new ADA policies to ensure its services are accessible to individuals with communication disabilities, designate an ADA administrator, enter into an agreement with sign language interpreting service providers, and train staff on ADA effective communication requirements.  These new policies must also be adopted by eight other facilities managed by Gutnicki and Kushner in New Jersey, Michigan and Virginia under the settlement agreement, according to DOJ.

Taking a Deep Dive into the Case

At the beginning of a new presidential administration, there are public and non-public clues to how the federal government will approach various issues and federal legal compliance. The BRNC settlement reveals many such potential indicators of how the Biden administration’s DOJ may approach ADA enforcement and compliance.

Organizations often are reluctant to have agreements and relationships with multiple language services providers to facilitate organizational compliance with the ADA. Having such multiple agreements is a recognized best practice that is infrequently embraced. Federal agencies and federal courts have typically not required or opined upon the need to have several language services companies or providers under contract.

The BRNC agreement is different.

Five Language Services Contracts Required

In a strikingly new development, DOJ requires BRNC to have contracts with “five or more” interpreter services to ensure 24/7 interpreter availability. This mandate may well become a uniform expectation from DOJ in its ADA enforcement under the new administration.

The agreement further requires BRNC to pre-screen interpreter services companies to make sure their interpreters are qualified to provide effective communications for BRNC patients.

According to the DOJ settlement:

“Within thirty (30) days after execution of this Agreement, BRNC agrees:

  1. To have written agreements with five or more interpreter services to ensure that interpreting services will be available on a priority basis, twenty-four hours per day, seven days a week.
  2. To establish internal procedures for its personnel to order interpreting services that are consistent with the interpreter or interpreter agencies’ procedures. At a minimum, all of BRNC’s requests for interpreters, including the time, date and
  3. location, will be confirmed in writing at the time of the request. If BRNC receives verbal confirmation or speaks with the vendor regarding the BRNC’s request for an interpreter, BRNC will confirm such conversations in writing and this information will be documented in the Interpreter’s Log. BRNC will retain a copy of all written correspondence with interpreting services. Additionally, for the duration of this Agreement, BRNC will file a copy of its written correspondence with interpreters and interpreting agencies in the Auxiliary Aid and Service Log discussed in paragraph 25.

BRNC may also hire qualified sign language interpreter(s) to be staff interpreter(s) that have been screened for the quality and skill of its interpreters to work with the population that resides at BRNC.”

Detailed Requirements for Effective Communication

In providing sign language interpreters, BRNC must also meet exacting time requirements, with in-person sign language interpreters being available “…no more than two hours from the time BRNC completes the [sign language interpreter need] assessment [for a patient] if the service is provided through a contract interpreting service or a staff interpreter who is located off-site.”

While attempting to locate an interpreter, BRNC will “… exert reasonable efforts (which shall be deemed to require no fewer than five (5) telephone inquiries and/or emails and/or text messages…)  to contact any interpreters or interpreting agencies already contracted with BRNC and request their services.”

If a sign language interpreter is provided through Video Remote Interpreting (VRI), BRNC has only “15 minutes from the time BRNC completes the [sign language interpreter need] assessment… Deviations from this response time will be addressed with the interpreting service provider, and performance goals will be reviewed with the U.S. Attorney’s Office.”

In addition, while awaiting the arrival of an in-person interpreter or while taking no more than 15 minutes to engage VRI, BRNC Personnel will continue to try to communicate with the Patient or Companion who is deaf or hard of hearing for such purposes …using all available methods of communication, including using sign language pictographs. This provision in no way lessens BRNC’s obligation to provide qualified interpreters in a timely manner .”

Such a requirement is noteworthy and addresses the all too common situation when providers do not effectively communicate with deaf or hard of hearing people while awaiting an interpreter.

The BRNC settlement agreement and DOJ’s jurisdiction to ensure agreement compliance will remain in effect for three years. During this time, we will evaluate how the Biden continues to enforce the ADA’s effective communication requirements.

© Bruce L. Adelson 2021. All Rights Reserved The material herein is educational and informational only.  No legal advice is intended or conveyed.

Bruce L. Adelson, Esq., is nationally recognized for his compliance expertise.  Mr. Adelson is a former U.S Department of Justice Civil Rights Division Senior Trial Attorney.  Mr. Adelson is a faculty member at the Georgetown University School of Medicine and University of Pittsburgh School of Law where he teaches organizational culture, implicit bias, cultural and civil rights awareness.

Mr. Adelson’s blogs are a Bromberg exclusive